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September 28, 2007

Obama talking about serious sentencing reform

As detailed in a number of posts below, I have been wondering about when some of the presidential candidates would start talking seriously about sentencing reform. According to this press release, which is entitled "Obama Outlines Plan to Address Disparities in America's Justice System," today is the day for Barack Obama.

Obama is giving a speech at Howard University, and the press release details these notable feature's of Obama's plan for "ensuring that every citizen is afforded equal and fair justice under the law":

"He will ensure that we have crime policy that is both tough and smart. This means if you are convicted of a crime involving drugs, you will be punished. However, the punishment for crack cocaine should not be that much more severe than the punishment for powder cocaine when the real difference between the two is the skin color of the people using them."

"He will review mandatory minimum drug sentencing to see where we can be smarter on crime and reduce the blind and counterproductive warehousing of non-violent offenders. And he will give first-time, non-violent drug offenders a chance to serve their sentence, where appropriate, in the type of drug rehabilitation programs that have proven to work better than a prison term in changing bad behavior."

With last week's Jena 6 march and next week's SCOTUS argument in Kimbrough, the timing for this speech seems just right. It will be especially interesting to see what sort of national reception it gets and whether these issues have any long-term traction.

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I will admit to not having kept up with this debate over the years, but I remember at least two points being brought up in favor of this sentencing disparity: (1) crack is far more addictive than cocaine, so an ounce-to-ounce comparison is invalid; (2) the difference between the two is not only the color of the dealers by the color of the addicts. When crack first appeared on the scene, if memory serves, it had an especially harmful effect in black communities (and there are people now who claim the CIA intentionally introduced the drug to decimate black communities).

Perhaps one or both of these factors has changed over the years, but it seems that civil rights advocates would WANT to punish those who are doing the greatest harm to their constituency.

So Obama is going to tout "the type of drug rehabilitation programs that have proven to work better than a prison term in changing bad behavior"? What "type" is that? The type that is imaginary I suspect since (as we've discussed before) there is no such "type". If we are going to give a very small percentage of drug offenders effective treatment why can't we be honest about the fact that we are doing it to help those few rather than perpetuate the lie that treatment is a silver bullet that it assuredly is not? Let's be honest about the lack of effectiveness.

I suspect disingenuous politics, as always, and predict Obama has no real intention of moving on treatment on a larger scale since, unlike his braindead disciples, he is no dummy (and in fact, a traditional DC operator) and must know the numbers don't support treatment as a realistic option to end addiction or recidivism for the vast, overwhelming majority of offenders.

Posted by: dweedle | Sep 28, 2007 11:40:02 AM

Mr. May: As recently as last year the DOJ was half-heartedly touting the "crack is more dangerous" argument at public meetings regarding the disparity... but now even the DOJ has retreated to "we are interested in having a debate."

When you are abandoned by the Bush DOJ in your tough sentencing argument you might want to reconsider your position. There is little evidence to suggest that crack is more associated with "violent street gangs" as the DOJ used to suggest. Crack doesn't fall from the sky, BTW, it's made from powder, and the same medium level dealers and distributors that manufacture crack must, by necessity, possess powder. So they're less dangerous if you catch them before they make the cut? Get real.

The disparity was born out of a panic, and like all laws born out of a panic it was and is unjust and without basis.

There are pitiful *few* studies Michael, as was discussed here at length a few weeks ago. Purposefully few, I would suggest, as the results would expose the rehab industry to serious questions about effectiveness.

NIDA (http://www.nida.nih.gov/) has some pre-crack numbers from 1986 that document 65% of treatment failing within 5 years. If you can find failure numbers from the '90's or '00's I'd be interested myself, mostly because I suspect that the rate now tops 80% or more with so many more cocaine and meth users in the population of addicts since '86. Meth in particular has proven to be a very tricky drug to quit. In fact, I wouldn't be surprised if the 5 year success rate on treatment is in the single digits.

After all, addiction is not "cured" by treatment, as the rehab industry is quick to point out when challenged by the lack of supporting evidence.

That being said, I do think therapy is a fine option for the individual that wants it, and I've put many clients into 30 day programs, country club camps, and "lookdown" facilities (that aren't really locked-down). The only large % who I have seen real effectiveness regarding rehab are kids who were using weed and drinking who, let's be honest, probably would have done just as well without rehab. There is a population sent to private rehab (mostly rich, young, and white) that aren't the type of offenders we are really talking about when these alternatives are touted as penal solutions.

The excuse that is often given is "we don't have enough beds". It's a cop-out and the lack of bona fide numbers only reinforces my belief that the proponents are scared of the true figures, particularly regarding meth and cocaine relapse from currently operating programs.

I'm sick of politicians like Obama using platitudes about drug treatment in debate as if it is a proven cure-all or equal substitution for incarceration. It ain't. Let's have some honesty about how ineffective it is and how recidivism is not significantly affected.

And again, I'm not saying treatment isn't an option that works well for some individuals, I'm just saying lets be honest about it's usefulness as an alternative to incarceration for recidivist populations as a whole.

If you can provide me numbers from those populations (not Bobby and Sue who got busted with a joint) that show effective treatment after 5 years for even a simple majority of that population I'll eat my words. Even the NIDA study showed 47% relapse within one short year -- all before crack and meth.

Posted by: dweedle | Sep 28, 2007 12:41:18 PM

From NIDA's website in its sections on meth and cocaine:

Meth
At this time, the most effective treatments for methamphetamine addiction are behavioral therapies such as cognitive behavioral and contingency management interventions. For example, the Matrix Model, a comprehensive behavioral treatment approach that combines behavioral therapy, family education, individual counseling, 12-Step support, drug testing, and encouragement for nondrug-related activities, has been shown to be effective in reducing methamphetamine abuse. Contingency management interventions, which provide tangible incentives in exchange for engaging in treatment and maintaining abstinence, have also been shown to be effective.

Cocaine
Many behavioral treatments have been found to be effective for cocaine addiction, including both residential and outpatient approaches. Indeed, behavioral therapies are often the only available, effective treatment approaches to many drug problems, including cocaine addiction, for which there is, as yet, no viable medication. However, integration of both types of treatments may ultimately prove to be the most effective approach for treating addiction. Disulfiram (a medication that has been used to treat alcoholism), in combination with behavioral treatment, has been shown, in clinical studies, to be effective in reducing cocaine abuse. It is important that patients receive services that match all of their treatment needs. For example, if a patient is un-employed, it may be helpful to provide vocational rehabilitation or career counseling. Similarly, if a patient has marital problems, it may be important to offer couples counseling. A behavioral therapy component that is showing positive results in many cocaine-addicted populations is contingency management. Contingency management may be particularly useful for helping patients achieve initial abstinence from cocaine. Some contingency management programs use a voucher-based system to give positive rewards for staying in treatment and remaining cocaine free. Based on drug-free urine tests, the patients earn points, which can be exchanged for items that encourage healthy living, such as joining a gym, or going to a movie and dinner.
Cognitive-behavioral therapy, or “Relapse Prevention,” is another approach. Cognitive-behavioral treatment, for example, is a focused approach to helping cocaine-addicted individuals abstain—and remain abstinent—from cocaine and other substances. The underlying assumption is that learning processes play an important role in the development and continuation of cocaine abuse and dependence. The same learning processes can be employed to help individuals reduce drug use and successfully cope with relapse. This approach attempts to help patients recognize, avoid, and cope; i.e., recognize the situations in which they are most likely to use cocaine, avoid these situations when appropriate, and cope more effectively with a range of problems and problematic behaviors associated with drug abuse. This therapy is also noteworthy because of its compatibility with a range of other treatments patients may receive, such as pharmacotherapy.
Therapeutic communities (TCs), or residential programs with planned lengths of stay of 6 to 12 months, offer another alternative to those in need of treatment for cocaine addiction. TCs focus on resocialization of the individual to society, and can include on-site vocational rehabilitation and other supportive services. Of course, there is variation in the types of therapeutic processes offered in TCs.

Posted by: Michael Connelly | Sep 28, 2007 1:51:10 PM

"Shown to effective"?? In what %? Over what time frame? Most drug treatment isn't even 100% effective while the addicts are IN the program!

This is convincing to you?

Take a look at the GAO's 1998 report that shows "benefits of treatment are overstated": http://www.gao.gov/archive/1998/he98072.pdf

What the GAO found is, as I stated, reliable data regarding treatment effectiveness is hard to find. Most studies rely on dubious self-reported data or other hard to define criteria.

Again, I want to state that I do not doubt there are a % of people that benefit from treatment, my complaint is the baseless assumption that treatment is a bona fide solution to recidivism and other penal issues.

George: Firstly, the studies mentioned suffer from the same issues the GAO had with the studies they reviewed in 1998: self reporting, indefinite criterion, and sample size. Second, a lot of these studies link treatment with "recidivism" without defining the terms and the length of study (i.e. the cite to NHS says 64% drop... for what time period?). Third, the link to recidivism itself is dubious and not usually well addressed. When you are dealing with specific populations (i.e. small) there are likely many factors that go into recidivism, such as education, economics, mental health, that are simply not addressed in these numbers.

There is really only one way to measure treatment effectiveness: whether it takes. Those numbers are all over the map in these studies but *ALWAYS* over 60% or more have relapsed five years and beyond.

That's the dirty little secret of treatment alternative proponents. The fact is that kicking drugs is very hard to do long term and the ultimate effect of sobriety on recidivism is not well documented or concretely studied.

Again, lets just be honest here. The numbers do not bear out that an vastly expanded treatment regime will be more effective, long term, compared to incarceration. Are the few victories that a select, well-sifted population have had in the past going to translate to the much larger, less controlled population proponents suggest?

Expanding treatment without asking these hard questions about the data makes us all feel really good about ourselves, and makes for a rah-rah progressive political slogan for Obama, but how realistic an option is it?

Findings
1. Evidence-based treatment works. We found
that the average evidence-based treatment
can achieve roughly a 15 to 22 percent
reduction in the incidence or severity of these
disorders—at least in the short term.
2. The economics look attractive. We found
that evidenced-based treatment of these
disorders can achieve about $3.77 in benefits
per dollar of treatment cost. This is equivalent
to a 56 percent rate of return on investment.
From a narrower taxpayer’s-only perspective,
the ratio is roughly $2.05 in benefits per dollar
of cost.
3. The potential is significant. We estimate
that a reasonably aggressive implementation
policy could generate $1.5 billion in net
benefits for people in Washington ($416
million are net taxpayer benefits). The risk of
losing money with an evidence-based
treatment policy is small.

Posted by: George | Sep 28, 2007 5:51:37 PM

Not that I don't think all the information on treatment is important because it is EXTREMELY important but it is missing the point of sentencing reform. Not all people convicted of selling drugs are addicts!!!! I do not have research to back up my statement but what I do have is first hand experience working in an institution. The sentences handed out to first-time, non-violent offenders is appalling and the majority were not addicts and many did have previous criminal records! The growing prison population, the impact on tax payers, and the fact that eventually these first-time, non-violent offenders will be released back into society (after 20-30 years of incarceration) should be troubling for all of America! Sentencing reform is far overdue!

Posted by: NLS | Sep 28, 2007 9:08:52 PM

dweedle,

I really don't get your response to my comments at all. The justifications I offered had nothing to do with street gangs. Justification number one was that crack is far more damaging to its users -- far more addictive. Also, isn't crack much cheaper, making its class of victims (users) much broader?

Nothing you said offered any support for a valid ounce-to-ounce comparison of the two drugs.

As for dealers being more dangerous once they have processed the powder cocaine into crack -- well, yes, they are, if crack is indeed more harmful. The owner of an AR-15 rifle is far less dangerous before he files down the sear pin to make the weapon fully automatic, after which he is much more dangerous.

And again, why does everyone concentrate on the race of the dealers instead of the race of the users? Crackpots voice their theories that the CIA introduced crack to destroy the black community. Civil rights leaders either ignore or endorse these theories, so obviously they find the introduction of crack to be a very heinous act. Why is it any less so when perpetrated by drug dealers of any color?

If you want parity, increase the penalties for powder, at least where possession with intent to process into crack can be proven. Then you can get the white guys that sell powder to the guys who make the crack -- if you have the proof.

Greg:
Reports are that the once stated THEORY that crack is more addictive than cocaine can not be substantiated, the crack laws were quickly enacted out of fear without the proof we now have. As for crack being cheaper I don't really see what that has to do with too harsh of penalities. (What about the growing meth problem?) As for crack dealers being more dangerous, you can not claim they are more dangerous simply because they deal in cheaper smaller amounts of a drug. (Again please remember studies conducted over the years are now disproving crack is more dangerous)I do not believe we have heard anyone push for violent, repeat offenders to get lighter sentences and you can not say that if you deal drug A your not dangerous but if you deal drug B you are less dangerous. That theory does not make sense. What if we put that same standard to alcohol? Over the legal limit is over the limit and dealing drugs is dealing drugs and a decade or more for a first time drug offense is absurd. Twenty years of these drug laws have done nothing to help America's drug problem!

Posted by: NLS | Sep 29, 2007 4:31:22 PM

Greg:
Reports are that the once stated THEORY that crack is more addictive than cocaine can not be substantiated, the crack laws were quickly enacted out of fear without the proof we now have. As for crack being cheaper I don't really see what that has to do with too harsh of penalities. (What about the growing meth problem?) As for crack dealers being more dangerous, you can not claim they are more dangerous simply because they deal in cheaper smaller amounts of a drug. (Again please remember studies conducted over the years are now disproving crack is more dangerous)I do not believe we have heard anyone push for violent, repeat offenders to get lighter sentences and you can not say that if you deal drug A your not dangerous but if you deal drug B you are less dangerous. That theory does not make sense. What if we put that same standard to alcohol? Over the legal limit is over the limit and dealing drugs is dealing drugs and a decade or more for a first time drug offense is absurd. Twenty years of these drug laws have done nothing to help America's drug problem!

Posted by: NLS | Sep 29, 2007 4:31:37 PM

Greg: If we are going to gauge punishments on the "damage to users" then I guess we should ramp up the punishment for people who procure alcohol and cigarettes to minors since those two drugs are the deadliest of all drugs known to man, right?

That being said there is no scientific evidence that crack is especially more harmful or more addictive than powder because, and I'll say this again since you seem to not get it yet, it's the same friggin' drug just delivered differently. Smoked cocaine (freebase or crack) just gets to those happy little receptors a little faster than up the ol' schnozz. That's why the disparity makes no sense except as a special punishment meted out to the poorer (blacker) users of cocaine.

Posted by: dweedle | Oct 1, 2007 6:34:24 PM

NLS,

Thanks for addressing the point raised in my comments. Of course, I realize that if you disprove the premise that crack is more addictive and more dangerous to its users, then you eliminate one of the reaons for enhanced sentencing that I have heard advanced. At least, so long as you are talking about like amounts and not just the effect of the drug overall.

I raise this because I have always heard complaints about the sentencing disparity made in terms of the amount of drug at issue. That is, harsher punishment for X grams of crack than for the same amount of powder cocaine. But if crack is distilled down from cocaine -- I have no idea what the actual ratios are, but suppose it tales 10 grams of poweder cocaine to create a 1 gram crack dose -- then isn't it fair that the sentence for 10 grams of powder should be the same as the sentence for 1 gram of crack? (I have no idea what the actual sentencing ratios are -- I am only setting forth a basic principle, here.)

As for being more dangerous, I agree wholeheartedly that drugs of like danger need to be treated alike. And if you are correct that crack and powder cocaine are equally dangerous on a gram-for-gram basis, then I certainly agree that sentencing should be the same for both.

My point about the drug being cheaper is that it makes for wider distribution, i.e., enlarges the customer pool, making it a bigger threat (in the abstract). People can argue about whether that justifies harsher sentencing, but it is a concrete difference.

But I don't think your drunk driving analogy holds. The proper analogy in that context is that an intoxicated person driving a car is far more dangerous than an intoxicated person shuffling down the sidewalk. We punish the former more harshly than the latter, and justifiably so.

You write that "you can not say that if you deal drug A you are more dangerous but if you deal drug B you are less dangerous." That is not true, at least in the abstract. Certainly, the dealer of drug A should be considered more dangerous than the dealer of drug B if drug A is likely to cause permanent brain damage to a person or is easy to overdose, while drug B is neither.

Again, I'm not insisting that crack is any more dangerous than powder cocaine, because I don't keep up with these studies. I'm only saying that relative danger of drugs could justify disparities in ounce-for-ounce sentencing.

Fact: The assertions claiming that children who have been exposed to crack cocaine before birth are permanently damaged are unsubstantiated. Numerous studies have shown that there is very little conclusive evidence to support the "crack baby" myth. The pervasive nature of this myth makes it extremely difficult for babies who have been exposed to crack to receive adequate medical attention. As a result, there has been a recent push in the medical community to combat the "crack baby" myth.

___________

Myth #2: Crack is purer than powder cocaine, and is more potent.

Fact: There is no pharmacological difference between crack cocaine and powder cocaine. Crack cocaine is simply powder cocaine which has been converted into a solid "rock" form that may be smoked. The effects of smoking crack cocaine may be more intense, but this is a result of the mode of ingestion rather than the drug's purity. Regardless, it is difficult to rationalize the extreme sentencing disparity between crack and cocaine.

Source:
Hatsukami, D. and Fischman, M. Crack cocaine and cocaine hydrochloride: are the differences myths or reality?. Journal of the American Medical Association (November 1996).

___________

Myth #3: To use crack once can lead to instant addiction.

Fact: While crack cocaine is addictive, it is extremely unlikely that one would become addicted after one use. 2004 statistics from the National Household Survey on Drug Use and Health shows that 7,840,000 (3.3%) of Americans have smoked crack cocaine during their lifetime. However, only 467,000 (.2%) of Americans reported smoking crack cocaine in the last 30 days. If crack was instantaneously addictive, the number of recent users would be much larger.

Source:
SAMHSA. Results from the 2004 National Survey on Drug Use and Health: Detailed Tables.

___________

Myth #4: Crack is much more addictive than powder cocaine.

Fact: There is very little evidence to support the claims that crack is more addictive than cocaine. According to the National Household Survey on Drug Abuse in 2004 of Americans age 12 and older, 5.9% of individuals who had ever tried cocaine went on to be "current users" (reported use within the past 30 days). The same statistic for crack use was also 5.9%. These numbers show no statistical difference in the tendency towards the future use of cocaine and crack.

Source:
Reinerman, C. and Levine H., Crack in America. University of California Press (September 1997).
2004 National Survey on Drug Use and Health: National Findings.

___________

Myth #5: Crack use is much more dangerous than powder and kills its users more often.

Fact: The misuse of any drug (legal or illegal) may be detrimental to the health of an individual. However, it is erroneous to claim that the use of crack cocaine alone is a major cause of death. In fact, in 2000 the percentage of deaths attributed to ALL illegal drugs was .7%. In comparison, 435,000 deaths (18.1%) were caused by tobacco in the same year. Claims that crack use is a leading cause of death are, for the most part, unsubstantiated.

Source:
Actual Causes of Death in the United States, 2000. American Medical Association (2004).

___________

Myth #6: Crack is used almost exclusively by Blacks and is a special plague of the Black community.

Fact: While often characterized as a drug of the Black community, 60% of individuals who have used crack in the last month are White. White crack users also account for 66% of individuals who have ever used crack in their lifetime. Simply stated, the majority of crack users are White.
Despite this reality, 80% of people arrested for crack offenses in 2002 were Black. Consequently, a disproportionate number of Black crack offenders face the harsh mandatory minimums associated with crack convictions.

Myth #7: Crack use leads to violence much more than the use of other drugs.

Fact: The claims that crack induces violence are grossly exaggerated. Research has shown that crack use does not necessarily result in violent behavior. Most of the violence related to crack is a result of the drug's status as an illegal substance. Violence is rarely a result of the pharmacological effects of the drug, and is most often attributed to the violent nature of the illegal drug market.